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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, AT NAGPUR.

WRIT PETITION NO. 2101 OF 2022

( Haridas s/o Deorao Borkar and another ..vs.. Smt. Parbatabai w/o Namdeo Shende and others )

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Office Notes, Office Memoranda of Coram,

Court's or Judge's orders

appearances, Court's orders of directions

and Registrar's orders

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Mr. S.P. Kshirsagar, Counsel for the petitioners.

CORAM : ROHIT B. DEO

, J

.

DATED : 20-04-2022

The petitioners are defendants 1 and 2 in Regular

Civil Suit 35/2016 which is instituted by respondent 1

herein Smt. Parbatabai Shende seeking declaration and

permanent injunction qua the suit property which is

described as plot admeasuring 1200 square feet situated

at Bhanegaon.

2.

Defendants 1 and 2 moved an application Exhibit

39, the prayer clause of which is that the suit be treated

as objection in Regular Darkhast 56/2011. Defendants 1

and 2 contended that they instituted suit against the co-

defendants 3 and 4 in which a decree is passed against

defendants 3 and 4, and execution is pending. It is then

contended that during the execution proceedings, the

plaintiff encroached upon the suit property and

therefore, the suit be treated as objection in the

execution proceedings which arises from the suit filed by

defendants 1 and 2.

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3.

This application is rejected by the learned trial

Judge reasoning thus :

“Heard learned Advocates for both parties at

considerable length. Perused the plaint in the present

suit and the nature of execution proceedings and

documents filed on record in present suit and Regular

Darkhast and Decree in Regular Civil Suit

No.2013/2001, Haridas vs. Krushna Exhibit 95, it did

not disclose the number of suit property. So also, in

Exhibit 1 of Regular Darkhast 56/2011 Haridas vs.

Krushna also did not mention about the name and

number of suit property. Therefore, considering the

application, I find that, it is devoid of merits and

without substance. Therefore, the citation relied

upon by defendant Nos. 1 and 2 is not helpful in

instant application. Parties are at liberty to file

objection in execution proceeding itself or may file

separate suit for the same.”

4.

I see nothing wrong in the reasons recorded by

the learned trial Judge. If according to defendants 1 and

2, the suit which is filed by the plaintiff, who admittedly

is not a party in the earlier suit, is not maintainable for

any reason, defendants 1 and 2 were free to take

recourse to such remedy as is available in law. However,

defendants 1 and 2 certainly cannot insist that the suit

filed by the plaintiff be treated as objection in the

execution proceedings filed by defendants 1 and 2.

5.

The petition is dismissed.

JUDGE

adgokar

Digitally signed byPRAFULLA

MANOHARRAO ADGOKAR

Signing Date:20.04.2022 17:14